U.S. v. Patino-Prado

• Decision Date: 25 June 2008
• Docket Number: No. 06-20900.,06-20900.
• Citation: 533 F.3d 304
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Efren PATINO-PRADO, also known as Amado Martinez, also known as Efrain Amador, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

533 F.3d 304

UNITED STATES of America, Plaintiff-Appellee, v. Efren PATINO-PRADO, also known as Amado Martinez, also known as Efrain Amador, Defendant-Appellant.

No. 06-20900.

United States Court of Appeals, Fifth Circuit.

June 25, 2008.

James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

John Kuchera, Waco, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, HIGGINBOTHAM and SOUTHWICK, Circuit Judges.

PER CURIAM:

Efren Patino-Prado was convicted by a jury of conspiring to possess with intent to distribute marihuana and cocaine in violation of federal drug laws. On appeal he argues that there was insufficient evidence to sustain his conviction for the cocaine-related conspiracy and that improper jury instructions permitted the jury to convict him without unanimously agreeing as to the precise object of the alleged conspiracy. We find no error and affirm the conviction and sentence.

I. Facts and Procedural Background

A. The Conspiracy

There is evidence in the record to support the following version of events. In the summer of 1997, Patino-Prado approached Rafael Dominguez, Jr., about transporting a load of drugs from Texas to Chicago, Illinois. Unfortunately for Patino-Prado, the Federal Bureau of Investigation suspected that Dominguez Jr. was involved in drug trafficking from Mexico to the United States and had already begun an investigation into his activities. This investigation entailed the use of, among other things, court-authorized wiretaps and confidential informants. In early September 1997, the FBI began intercepting phone conversations between Dominguez Jr. and his father, Rafael Dominguez, Sr., regarding a large shipment of drugs from Texas to Chicago.

In mid-September, Patino-Prado, Dominguez Jr., and Dominguez Sr. met in Houston, Texas, to plan the transportation of the drugs. Patino-Prado agreed that one of his associates would drive the drugs from Texas to the outskirts of Chicago. Dominguez Jr. would arrange for a local driver to take the drug-laden tractor-trailer into the city and secure a warehouse where the truck could be unloaded. The drugs would be hidden in a load of imported limes. Both Dominguezes testified that Patino-Prado only discussed a "marihuana shipment" at this meeting; no one mentioned cocaine. The Dominguezes insist that they never agreed to transport cocaine.

After the meeting, Dominguez Jr. directed his aunt and uncle, who, unknown to him, were FBI informants, to make arrangements for a warehouse in Chicago. Dominguez Sr. arranged for a small market in Chicago to place an order for the limes. The use of the market enabled him to obtain a bill of lading that would permit the limes to pass through United States customs. Patino-Prado approved these arrangements and told Dominguez Sr. that he would place just under one ton of marihuana on the truck with the limes. Dominguez Jr. hired Michael Cavazos to meet Patino-Prado's driver on the outskirts of Chicago and drive the tractor-trailer to the warehouse.

On September 27, the tractor-trailer bearing the limes departed for Chicago from Hidalgo, a south Texas town joined to Mexico by a bridge over the Rio Grande. On September 28, Dominguez Jr. flew to Chicago along with his aunt and uncle. On September 29, Patino-Prado met Dominguez Jr. at a restaurant in Chicago. During this meeting, Patino-Prado stated that he believed he was under surveillance. That belief caused Patino-Prado later in the day to inform Dominguez Jr. that he was leaving Chicago and that a person named "Leonel" would close the transaction in his stead. On September 30, Leonel contacted Dominguez Jr. and arranged a meeting for the next day.

On October 1, Leonel met Dominguez Jr. and took him to the tractor-trailer which was parked at a hotel on the outskirts of Chicago. Leonel gave Dominguez Jr. the keys to the truck and a partial payment for the warehouse. Dominguez Jr.'s driver, Cavazos, then took the truck from the hotel to an industrial park. After Dominguez Jr. inspected the warehouse and found it satisfactory, Cavazos drove the truck into the city. However, Cavazos had a difficult time maneuvering the tractor-trailer into the warehouse. Dominguez Jr. stopped traffic while Cavazos tried to back into the warehouse.

While assisting Cavazos's efforts to maneuver the tractor-trailer, Dominguez Jr. noticed a white vehicle drive past multiple times. Suspicious that the car was driven by law enforcement officers, Dominguez Jr. fled the scene along with his father and Leonel. Dominguez Jr. called Patino-Prado and told him what had happened. Patino-Prado advised him to leave the area. Later that day, the FBI searched the tractor-trailer and warehouse and seized 915 kilograms of marihuana and 245 kilograms of cocaine. After verifying that the warehouse had been raided, Dominguez Jr. informed Patino-Prado that the load of drugs had been seized. Patino-Prado requested proof of the seizure.

On October 2, news sources in Chicago carried reports of the warehouse raid and drug seizure. Leonel watched a television report and became concerned because the report noted only that marihuana was seized, making no mention of the cocaine. Leonel called Dominguez Jr. to inquire about the cocaine that had been hidden in the tractor-trailer. Dominguez Jr. told Leonel that he did not know anything about cocaine having been stashed in the truck. According to Dominguez Jr., Leonel responded with some surprise: "Efren [Patino-Prado] never told you?" Dominguez Jr. responded, "He never told me," and then ended the conversation out of fear that he was under surveillance.

On October 5, Dominguez Jr. met with Patino-Prado in Houston, Texas. Dominguez Jr. provided a newspaper clipping to prove that the drugs were seized and confronted Patino-Prado about the placement of cocaine in the tractor-trailer. According to Dominguez Jr., Patino-Prado apologized for not telling either of the Dominguezes about the cocaine. Apparently, Dominguez Jr. was not so much concerned about having transported cocaine as he was upset that he had done so unknowingly; he would have demanded a higher fee.

Two days later, Patino-Prado met Dominguez Jr. again and asked if he would be interested in moving some more cocaine. Dominguez Jr. said that he was. Patino-Prado said that he knew where he could get 25 kilograms of cocaine, but he had to check on the price. Dominguez Jr. reiterated that he was interested in transporting the cocaine. The two never met again; Dominguez Jr. never transported a second load of cocaine for Patino-Prado.

B. Indictment and Trial

In May 1998, a federal grand jury indicted Patino-Prado and five other individuals, including both Dominguezes, each on one count of conspiring to possess with intent to distribute marihuana and cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), & 846. For reasons that are not entirely clear, Patino-Prado was not immediately arrested. In fact, he did not make an initial appearance before the district court until May 2005. The Dominguezes both pled guilty to the conspiracy charge. Patino-Prado pled not guilty. During his jury trial, a number of law enforcement agents testified regarding their investigation of Patino-Prado and his co-conspirators. Dominguez Jr. and Dominguez Sr. also testified against him. The jury returned a verdict of guilty. The district court denied Patino-Prado's motions for a judgment of acquittal made at the close of evidence and again after the verdict.

Patino-Prado was sentenced to 240 months in prison, the maximum sentence for conspiring to possess with intent to distribute an unspecified quantity of cocaine under 21 U.S.C. § 841(b)(1)(C). He was also given a three-year term of supervised release and ordered to pay $5,100 as fine and special assessment. Patino-Prado timely appealed his conviction and sentence.

II. Discussion

Patino-Prado's appellate arguments may be summarized this way: (A) there was insufficient evidence to support a conviction for the cocaine-related conspiracy; (B) the jury instructions improperly permitted the jury to convict him without unanimously agreeing whether the object of the conspiracy involved marihuana or cocaine; and (C) alternatively, because the jury was not required to agree unanimously about the object of the conspiracy, his sentence must be reformed to the maximum length permissible for a marihuana-related conspiracy.

We will follow that order in analyzing the issues presented.

A. Sufficiency of the Evidence

Because Patino-Prado raises a challenge to the sufficiency of the evidence after having properly moved for a judgment of acquittal, we consider whether a rational jury could have found the essential elements of the offenses beyond a reasonable doubt. United States v. Moreno, 185 F.3d 465, 471 (5th Cir.1999). We view the evidence and the inferences that may be drawn in the light most favorable to the verdict. Id. Credibility determinations, being the province of jurors, also are reviewed in the light most favorable to the verdict. Id. A "jury is free to choose among reasonable constructions of the evidence," even if some constructions are not "wholly inconsistent with every conclusion except that of guilt ...." Id. However, if the evidence "gives equal or nearly equal circumstantial support to a theory of guilt or innocence," the court should reverse because "under these circumstances a reasonable jury must necessarily entertain a reasonable doubt." United States v. Ramos-Garcia, 184 F.3d 463, 465 (5th Cir. 1999) (citations and some internal quotation marks omitted).

Federal law criminalizes possession with intent to distribute a "controlled substance." 21 U.S.C. § 841(a)(1). The essential elements of a violation of Section 841(a)(1) include: (1) knowledge, (2) possession, and (3) intent to distribute the controlled substance. United States v. Delgado, 256 F.3d 264, 274 (5th Cir.2001)....